Massachusetts district court filings have dropped over 20 years - why?

Eli Sherman Wicked Local @Eli_Sherman

Monday

Aug 6, 2018 at 8:43 AM

Peter Elikann remembers arriving at district court on Monday mornings in the 1990s and finding throngs of people.

“There would be so many people that they’d be waiting outside the courtroom doors and hanging from the rafters,” he said, with some hyperbole.

Today, however, the scene is much different.

“Now, when I go into a courtroom, it’s like a barren desert,” Elikann said.

The Boston defense attorney’s anecdotal evidence is backed by data. A Wicked Local review of Trial Court data from the last two decades shows new cases filed in District Court fell 36.5 percent between 1998 and 2017.

The trend has accelerated within the last 10 years and is relatively consistent across the 62 district courts in Massachusetts, which excludes Boston. The capital city, nonetheless, is realizing similar decreases.

Police, attorneys and law groups have various explanations for the widespread decline, but leading the way -- especially in recent years -- is a falling number of civil and criminal cases.

The two types of cases make up the lion’s share of cases heard by District Court judges and are declining for different reasons. But both signal a shift in the workload for the Massachusetts judicial system.

On the criminal side, at least part of the explanation is straightforward.

“Arrests are down everywhere,” Elikann said.

Where is the crime?

For the most part, fewer people in Massachusetts are getting arrested each year.

Indeed, the number fell nearly 20 percent between 2007 and 2016, according to data compiled by the FBI, which correlates with a similar decline of criminal cases filed across the state.

In Brookline District Court, for example, fewer arrests in recent years has translated into a 33.2 percent decrease in criminal cases filed between 2015 and 2017.

“We had 193 (arrests) in the first six months of last year,” Harrington wrote in an email. “This year we had 128 in the same time frame.”

Between 2015 and 2017, criminal cases declined in 52 of the 62 district courts. Brookline led the way with the greatest decline, followed by Marlborough, Framingham, Somerville and Winchendon.

The decreasing number of arrests and criminal cases statewide is happening concurrent to an ongoing opioid epidemic, which contrasts the crack epidemic during the 1980s and 1990s when arrests and incarceration soared throughout the country.

Former Gov. Deval Patrick, a Democrat, declared a public health emergency in response to the growing opioid epidemic in 2014. In the two years following, arrests in Massachusetts fell 5.2 percent, according to the FBI.

Why there aren’t actually more arrests is somewhat difficult to pinpoint, but Walpole Police Chief John F. Carmichael Jr. expects there are various contributing factors.

“In years past, many times people suffering from substance-use disorders or mental health situations may have been arrested,” Carmichael said. “Policing has shifted (its) focus from the crime, and perhaps (the) arrest, to community outreach in helping people addicted with resources and problem-solving to prevent further harm.”

Unlike the crack epidemic, the influx of opioids has spurred widespread drug-treatment programs offering an alternative to criminal justice. The diversion tactic, especially for juvenile and first-time offenders, is likely keeping more people out of the system and crime from rising, according to Elikann.

“(Most) people who get arrested have a drug, alcohol or mental-health problem. When we attack those problems, we see the crime rate go way, way down.” Elikann said. “It’s not like the old days when you didn’t have this number of programs and you can truly see the effort is backed up by statistics.”

Another answer for fewer arrests has come in the wake of the decriminalization of marijuana in 2008. The policy change resulted in fewer marijuana-related arrests and has contributed to the overall downward trend.

“Total marijuana arrests dropped dramatically after possession of one ounce was changed from a criminal to a civil infraction,” according to a 2016 report by the ACLU Massachusetts.

Carmichael agrees.

“In 21st-century policing, police departments understand that arrest rates are not indicative of their overall effectiveness. Reducing crime and fear of crime is part of our job, but we have changed our strategies in how we accomplish that objective,” the Walpole chief said. “So, if you ask me, decriminalization, reform and transformation in policing strategies play a role in the decrease in arrest and criminal cases.”

Meanwhile, at the same time criminal cases are in decline, civil cases are also falling. Unlike the criminal side, however, the explanation is more nuanced and potentially more damaging to the court system, case law and public awareness.

“I think society is as litigious as it’s always been. The public numbers are being skewed by this private justice system that’s evolved,” said Martin W. Healy, chief legal counsel at the Massachusetts Bar Association.

The cases range from clashes between neighbors to complicated contract disputes between consumers, employees and companies.

Such conflicts have historically been resolved in the public court system. But in recent years, more disputes are being settled outside of court in a private process known as mediation and arbitration. And the shift helps explain why civil cases declined in 52 of 62 Massachusetts district courts between 2015 and 2017. The biggest declines happened in Westborough, Ipswich, Plymouth, Waltham and Marlborough.

“There’s a growing use by the legal profession of mediation services,” Healy said.

Advocates herald mediation -- a process involving an independent moderator -- and arbitration, which looks more like traditional court, as less costly, more predictable and otherwise more efficient. Mediators and arbitrators – typically retired judges – are fairly consistent about how they help solve disputes and scheduling is relatively flexible. The district courts still have plenty of work, Healy added, but many litigators are finding the private process more favorable.

“Overall, attorneys have found it more effective in the long run,” Healy said.

The downside, especially for the public and the rule of law, however, is that the process happens behind closed doors, meaning businesses and individuals can keep the dispute, the process and the decision confidential.

Many settlements come with nondisclosure agreements, which typically keeps any record “out of the public eye,” Healy added.

The approach may benefit those involved, including families with embarrassing disputes, or businesses concerned with leaking trade secrets. But court proceedings for centuries have helped steer the rule of law and shed light on wrongdoings. With mediation and arbitration, the legal system is blind to such decisions and citizens are unlikely to learn from the potential misfortune and mistreatment of others.

Additionally, in a growing number of instances, companies are now using so-called “forced arbitration” clauses in employment contracts, which mandate employees to resolve all legal disputes through the private system. The forced-arbitration requirements are especially controversial in the rise of the #MeToo movement, which has -- among other things -- encouraged people to speak out against workplace sexual harassment and discrimination.

The use of forced arbitration, however, is well protected, as the U.S. Supreme Court in May ruled in a 5-4 decision in favor of employers using language to require employees to settle collective disputes in individual arbitration.

The ACLU argues the decision will make it more difficult for alleged victims of sexual harassment and abuse in the workplace to speak out in a collective voice, hurting the far-reaching movement.

“The decision came in a case about failure to pay overtime, but its implications are far broader and extend to many of the claims of harassment and discrimination that have surfaced thanks to the #MeToo and #TimesUp movements,” the ACLU wrote in May.

The dynamic could embolden more companies to require arbitration, which -- along with the growing popularity of mediation -- could continue to fuel the decline of civil cases heard in Massachusetts district courts.

“The mediation world is the future of litigation and it continues to grow as more entities and individuals are getting involved,” Healy said.

Eli Sherman is an investigative and in-depth reporter at Wicked Local and GateHouse Media. Email him at esherman@wickedlocal.com, or follow him on Twitter @Eli_Sherman.